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Judgment
D.H. Waghela, C.J.
This appeal seeks to challenge the judgment dated 24.12.2014 of the learned Single Judge of this Court in Regular First Appeal No. 23 of 2010 which was filed invoking the civil appellate jurisdiction of the High Court.
In view of the express provision of Section 100-A of the Civil Procedure Code as amended by Act 22 of 2002 which came into effect w.e.f. 1.7.2002, the appeal is prima facie not maintainable. However, it is submitted by Mr. Ashok Mohanty, learned Senor Advocate that the original suit in the present matter was filed in the year 2000 and the right of appeal having been vested in the party since then, it could not have been taken away.
Learned Senior Counsel relied on judgment of the Division Bench of this Court in Special Land Acquisition, Officer, Talcher & Ors., v. Tankadhar Mana Bhoi & Ors., 2003 (Supp.) OLR 337 wherein on 7.3.2003 it was held by the Division Bench of this Court that the bar created by Section 100-A of the Code would have operation only in case suits are instituted subsequent to 1.7.2002.
It was however, fairly submitted by learned Senior Counsel that the aforesaid views have been expressed in several subsequent judgments which have to be taken note of by this Court. The Full Bench of this Court in Mahammed Saud and Others Vs. Dr. (Maj) Shaikh Mahfooz and Another, AIR 2009 Ori 46 : (2008) 2 OLR 725 , clearly held that after introduction of Section 100-A in the Code of Civil Procedure by Amendment Act 22 of 2002, no Letters Patent Appeal is maintainable against the judgment/order/decree passed by the learned Single Judge. The Full Bench has relied upon the observations made by the Apex Court in Kamal Kumar Dutta and Another Vs. Ruby General Hospital Ltd. and Others, (2006) 134 CompCas 678 : (2006) 5 CompLJ 511 : (2006) 7 JT 333 : (2006) 7 SCALE 668 : (2006) 7 SCC 613 : (2006) 70 SCL 222 : (2006) 4 SCR 462 Supp for the proposition that the Parliament, while amending Section 100-A of the Code of Civil Procedure by Amendment Act 22 of 2002 with effect from 1.7.2002, took away the Letters Patent power of the High Court in the matter of appeal against an order of a learned Single Judge to the Division Bench.
It is important to note here that the Full Bench decision of this Court in LPA No. 7/2008 (supra) was challenged in the Hon''ble Apex Court vide Civil Appeal No. 9321-22 of 2011 with Nos. 9323-24 of 2010 and the Hon''ble Apex Court decided the issue by the judgment as reported in Mohd. Saud and Another Vs. Dr. (Maj.) Shaikh Mahfooz and Others, AIR 2011 SC 485 : (2011) 3 RCR(Civil) 617 : (2010) 11 SCALE 283 : (2010) 13 SCC 517 : (2010) 10 UJ 4993 : (2010) AIRSCW 5093 of the said judgment, the Hon''ble Apex Court held as follows:
"18. For the reasons given above, we are of the opinion that the Full Bench of the High Court has taken a correct view. Thus, there, is no force in the appeals, which are dismissed accordingly."
Another judgment of the Division Bench of this Court in Ramesh Chandra Das Vs. Kishore Chandra Das and Others, AIR 2007 Ori 146 : (2007) 1 OLR 1110 Supp has held, after reference to the aforesaid judgment in Special Land Acquisition Officer, Talcher & Ors., v. Tankadhar Mana Bhoi & Ors., 2003 (Supp) OLR 337 (supra), that the appeals filed after the Amendment Act 22 of 2002, taking effect from 1.7.2002, were not maintainable.
Learned Senior Counsel also pointed out form the Three Judge Bench judgment of the Apex Court in Dayaram Vs. Sudhir Batham and Others, (2011) 6 CTC 192 : (2011) 12 JT 174 : (2011) 11 SCALE 448 : (2011) 6 UJ 3938 that in the facts of that base, even as the original petition was under Article 226 of the Constitution, it was clearly observed that right to file a writ appeal under the Adhiniyam (State Act) was a vested right to any person filing a writ petition. That right could be taken away only by an express amendment to the Act or by repeal of that Act, or by necessary intendment, that is, where a clear inference could be drawn from some legislation that the legislature intended to take away the said right. The right of appeal to a Division Bench, made available to a party to a writ petition, either under a statute or Letters Patent, cannot be taken away be a judicial order. The power under Article 142 is not intended to be exercised, when such exercise will directly conflict with the express provisions of a statute. However, in the same judgment, it is repeatedly observed, on the basis of previous judgment of the Apex Court, that such a right of appeal could not be taken away except by express enactment or necessary implication and the vested right of appeal could be taken away by a subsequent enactment, if it so provides expressly or by necessary intendment and not otherwise. The earlier observation of this Court could only be read in the context of facts of the case and the ratio of the judgment appears to be that vested right of appeal could be taken away by a subsequent enactment.
In view of the ratio of the above later judgments, the law laid down in Special Land Acquisition Officer, Talcher & Ors. v. Tankadhar Mana Bhoi & Ors., 2003 (Supp) OLR 337 is no longer good law and stands overruled by necessary implication.
In that view of the matter, the present appeal is not maintainable and dismissed as such.